FINAL REPORT: THE EFFECTIVENESS OF FORMERLY USED DEFENSE SITES STATEWIDE MANAGEMENT ACTION PLANS

Transcription

1 DECEMBER 2008 FINAL REPORT: THE EFFECTIVENESS OF FORMERLY USED DEFENSE SITES STATEWIDE MANAGEMENT ACTION PLANS Results Collected and Finalized by: ASTSWMO State Federal Coordination Focus Group 444 North Capitol St., NW Suite 315 Washington, D.C TEL: FAX: ASTSWMO s mission is to enhance and promote effective State and Territorial waste management programs and affect national waste management policies.

2 Executive Summary Background The U.S. Army Corps of Engineers (USACE) and State programs jointly developed a Formerly Used Defense Sites (FUDS) Management Action Plan (MAP) pilot program in In general, FUDS MAPs have been developed with the objective of collecting information on each FUDS within a State, including location, history, and contaminants of concern, and compiling this information into one comprehensive document in an attempt to prioritize and facilitate site cleanup. In addition, the MAPs were designed to enhance communication, coordination and document review. Of the 57 States and Territories (States), over 30 have entered into FUDS MAPs or equivalent agreements. For example, Pennsylvania and the Department of Defense (DOD) have entered into the Cooperative Multi-Site Agreement (CMSA), which contains actions plans for over 100 FUDS in Pennsylvania. In other States, such as Rhode Island, no formal FUDS MAP has been developed; however, the State and USACE have voluntarily shared information about FUDS. Many States that have had a MAP or equivalent document have found the documents to be ineffective due to lack of communication and coordination. As a result, in the Spring of 2008, the Association of State and Territorial Solid Waste Management Officials (ASTSWMO) State Federal Coordination Focus Group queried the States about the effectiveness of implementing State FUDS MAPs. The results of the interviews and a summary of State responses are provided in this Report. Results The State Federal Coordination Focus Group requested information from State federal facilities programs. A total of 41 States responded to ASTSWMO s request. These States are listed below, in order by USACE Military District. Please note that some States are geographically located in more than one Military District due to split responsibility. Alaska District: Baltimore District: Buffalo District: 1 Fort Worth District: Kansas City District: Los Angeles District: Louisville District: New England District: Alaska Delaware, District of Columbia (DC), Maryland, Pennsylvania, Virginia Ohio Arkansas, Louisiana, Texas Idaho, Kansas, Missouri, Nebraska, Washington California, New Mexico Illinois, Indiana, Michigan, Ohio Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont 1 Although the Buffalo District is involved with FUDS in Ohio, Louisville is the lead District for Ohio FUDS, and is responsible for the MAP. Page 1 of 34

3 Omaha District: Sacramento: Savannah: Tulsa District: Colorado, Iowa, Minnesota, Montana, North Dakota, Nebraska, South Dakota, Wisconsin, Wyoming California, Utah North Carolina, South Carolina, Tennessee Oklahoma, Texas The responses indicate that the overall effectiveness of FUDS MAPs with regard to improved communication, coordination, prioritization, and funding at FUDS sites between the States and the USACE is varied. Approximately half of the polled States that have entered into a FUDS MAP have seen improvements, while the other half have seen little to no improvements. Results tend to show that in States where improvements have been seen, the overall working relationship between the State and the USACE is good or better. However, in the States where little to no improvements have been seen, the overall working relationships between the State and the USACE is mixed, with some States having good working relationships, and other States having bad or worse relationships. Notably, only half of the States with FUDS MAPs indicated that they have seen improvements in their working relationships with USACE. Of States that do not have formal FUDS MAPs, the majority indicated they generally have good working relationships with the USACE. The remainder of the States that do not have formal FUDS MAPs have bad overall working relationships with the USACE. Of the States that have a FUDS MAP in place, the average period of time between MAP revisions is 3.5 years, and the range is from 1 year to 6 years. If a State s MAP has not been revised for several years, it may no longer be an effective tool for workload prioritization and planning. Overall, the lack of funding is a major issue for most States, and tends to impact the amount of work performed at FUDS, as well as the quality of work performed, by the USACE. In addition, most States indicate that communication between States and the USACE greatly affects coordination, prioritization, and the overall working relationship between the two parties, regardless of a State having a FUDS MAP or not. In some States where lack of funding is an issue, the working relationship with the USACE is good due to increased communication between the two parties. Specific responses to ASTSWMO s questions are tabulated below. ASTSWMO s July 12, 2007, FUDS Position Paper stated that FUDS MAPS must be used to strengthen and improve cooperation and communication between EPA, States, and the USACE. Based on the results of this Report, it appears that FUDS MAPs overall are not accomplishing this goal. Though some States have seen improvement after developing a MAP, many more States are frustrated with the lack of communication with USACE on FUDS. Since ASTSWMO feels the early and successful collaboration with States is crucial to the success of the FUDS program, ASTSWMO recommends that USACE and DOD revisit the implementation of the FUDS MAP to improve its effectiveness as a tool in coordination and communication with States. Page 2 of 34

4 1. Do you have a formal/signed FUDS MAP? Yes (19): Alaska California Colorado Indiana Kansas Massachusetts Michigan Missouri Nebraska New Mexico New York North Carolina Ohio South Carolina South Dakota Texas Virginia Washington Wyoming No (22): Arkansas Connecticut Delaware District of Columbia (DC) Idaho Illinois 1 Iowa Louisiana Maine 2 Maryland Minnesota Montana New Hampshire 2 New Jersey North Dakota Oklahoma Pennsylvania 3 Rhode Island 2 Tennessee Utah Vermont Wisconsin 46% Yes No 54% Total Respondents: 41 States Notes: 1 We have a FUDS MAP, but it has never been finalized or signed. 2 State entered into FUDS MAP with USACE after ASTSWMO interviewed the States. This Report depicts the State s responses prior to entering into a MAP. 3 Yes and No. Pennsylvania does not have a separate FUDS agreement; however the CMSA contains all FUDS as well as Army, Navy, Air Force and Defense Logistics Agency sites known to exist within the State. The CMSA effectively functions as a MAP. It contains action plans for over 106 FUDS initially identified in Pennsylvania. The CMSA contains an inventory of all known FUDS within the State, utilizes a Master Plan for scheduling work at all FUDS, and measures progress through annual updates and reports. Page 3 of 34

5 1a. If yes, when did your agency first begin developing a MAP and when was the latest version of the MAP completed? Alaska: November 2002 California: August 29, 2006 Colorado: March 2006 Indiana: Kansas: Indiana s MAP was signed in It was supposed to be updated annually, but it has not been updated. The first MAP was prepared jointly by USACE, Kansas Department of Health and Environment (KDHE), and U.S. Environmental Protection Agency (EPA), and issued in September KDHE submitted the most recent update to USACE in May Massachusetts: February 22, 2002 Michigan: Missouri: Nebraska: New Mexico: Our MAP was finalized in We started updating it this year, and are still working on it. First developed by signed Memorandum of Understanding (MOU), March We have had MAPs dating back to the early 1980s. The most recent MAP took almost two years to complete and the final document is dated August We are planning on doing an annual update, with changes being made primarily to the planning, project tracking/status reports, and project prioritization documents. We developed the initial FUDS MAP about 3 years ago, and have not revised it since. New York: April 2004 North Carolina: July 2006 Ohio: The first MAP was signed in May Since that time, the document has been revised, but the revisions have never been finalized. The document has never been updated. The original plan was for Ohio s MAP to be updated annually. South Carolina: July 1, 2003 South Dakota: Late 1990s Texas: June 16, 2003 Page 4 of 34

6 Virginia: February 2003 Washington: 2005; modeled after Alaska s MAP. Wyoming: September 2004 Page 5 of 34

7 1b. If no, has the U.S. Army Corps of Engineers asked your agency to enter into a MAP? Arkansas: Connecticut: Delaware: DC: Idaho: Arkansas is not intending to pursue a MAP with the USACE since we do not have a Defense State Memorandum of Agreement Cooperative Agreement (DSMOA/CA) and therefore have limited resources for FUDS project oversight. No Yes No We have a draft that we have been jointly working on with USACE. While the current draft includes information about FUDS in Idaho, Idaho believes document needs to better show how the FUDS strategy translates to FUDS sites in Idaho. The MAP needs to be a management plan for Idaho, not simply a discussion of the federal approach to decision making and priority setting at the federal level. Idaho has made both the Seattle District and Kansas City program office aware of our concerns. How annual priorities will be set and schedule will be established in the current year and out years needs to be established. Idaho is pleased with the efforts currently being undertaken at FUDS Military Munitions Response Program (MMRP) sites to date, but State review of Inventory Project Reports (INPRs) using federal funding continues to be limited to five sites per year. This is a significant constraint on our ability to fully evaluate the universe of FUDS in Idaho. USACE is aware of this problem and the funding constraints imposed by the DOD policy on INPR review by the States, but there are no specific proposals on the table to address this issue. Idaho would like to open this issue up for discussion with DOD and USACE so that we have some reasonable end point for INPRs where Idaho can agree with the no further action determination for these sites or developing a path forward for those sites where Idaho has concerns. Despite these concerns, Idaho believes the MAP concept is a good one because it is the only State specific management plan where issues can be identified, resolved or elevated for resolution. Idaho has also found the process helpful in getting site specific information such as specific location and maps of each site. Illinois: Iowa: Yes. A MAP has been under development for several years. We first started working on it 3 years ago. No Page 6 of 34

8 Louisiana: Maine: Maryland: Minnesota: Montana: New Hampshire: New Jersey: North Dakota: Oklahoma: Pennsylvania: Rhode Island: Tennessee: Utah: Yes, Louisiana is in the process of developing a MAP. Yes Yes, a MAP is proposed for the next CA. I remember the MAP issue coming up a few years ago, but I don t remember if the USACE approached us about entering into a MAP. Yes. The State is providing regulatory oversight of one FUDS. The USACE approached the State approximately two years ago about doing a MAP, but the State declined. No, although New Hampshire asked the USACE for a MAP. Yes. A MAP was proposed to the State of New Jersey several years ago, however the decision by the State was not to enter into a MAP. The rationale behind this decision included the fact that within New Jersey there is no section dedicated to solely handling Federal Facilities. The technical case manager caseload includes various types of cases, which may in turn drive differing priorities thereby affecting deadline agreements. New Jersey currently has a CA in place which essentially lists the cases that we are going to be working on. The CA is revisited every 2 years. The State contact does not recall USACE having approached them about it. Yes, but Oklahoma does not believe a MAP is necessary since we have a good working relationship with the USACE District. Currently, all military cleanup sites in Pennsylvania have either been resolved under the CMSA, deferred to other compliance programs, or are still on the Scheduled List of Sites to be addressed under the CMSA. Approximately 40 FUDS remain on the active Scheduled List of Sites. Some consideration has been given to turning the CMSA into a FUDS only agreement since all the other services activities have been completed. Yes No. We are working with them on several sites through DSMOA. Yes Page 7 of 34

9 Vermont: Wisconsin: No No, not to my knowledge. Page 8 of 34

10 2. What is the scope of your MAP? Please explain: Alaska: The MAP was developed and signed by the USACE Alaska District, Alaska Department of Environmental Conservation (ADEC), and EPA. The goals include: Establish a team of personnel from the USACE Alaska District, the ADEC, and EPA Region 10 to coordinate FUDS restoration activities. Establish a framework to coordinate priorities for future remediation activities among the agencies. Present a list of FUDS properties and project categories. Develop a coordinated long-range plan for environmental remediation at FUDS properties Provide a summary of the Defense Environmental Restoration Program (DERP)-FUDS program within the State that may be made available to all stakeholders Summarize and forecast future activities and associated costs. The MAP describes each agency s roles and responsibilities with respect to the FUDS Program. It includes tables (from FUDSMIS) listing all FUDS properties and projects in Alaska, and a map showing the locations of FUDS properties. A joint prioritization process was developed that incorporates USACE, ADEC, and EPA input. The MAP also calls for semiannual meetings to review the status and update the document. California: Colorado: We actually signed two documents: the California Statewide Management Action Plan (CASMAP) and the Statement of Intent. The CASMAP was produced to improve communications and coordination between United USACE staff, EPA staff, and the State regulatory staff, to verify the FUDS California property inventory, and to determine a statewide clean-up priority. The CASMAP will become the formal reference document concerning FUDS information and FUDS project status in California. The CASMAP is designed to promote involvement of the State regulatory agencies, EPA, and other stakeholders in the planning, programming, budgeting and execution of projects necessary to clean up FUDS properties identified in California s inventory. The CASMAP is a living document that should be updated annually. The MAP basically has three parts: A list of FUDS in the State; Detailed information for each site; and A description of the known funding requirements. Page 9 of 34

11 Illinois: Indiana: Kansas: Maine: Massachusetts: Michigan: Missouri: NOTE: FUDS MAP not yet signed. The MAP covers the same information as our semi-annual program meetings. It discusses funding, prioritization, site points of contact for both the State and USACE, and what work has been completed. According to the EPA Region 5 contact, Illinois 2006 MAP looks like all the other ones he has seen. It provides an inventory of properties and projects, discusses how all the agencies interact, the project priorities for Indiana FUDS, and provides estimates for what the USACE will accomplish this year and in future years. Kansas receives site-specific management action plans from USACE, updates current and planned State activities for each site, and submits the updated MAPs to USACE. To make sure the State s list of FUDS corresponds to USACE s list, to prioritize sites, and to establish a working relationship. To identify FUDS universe in Massachusetts, evaluate for immanent hazards, review No Further Action (NOFA)/USACE recommendations, and gather information to assist in developing priorities. The MAP covers all known sites, categories sites, and tries to identify what sites need projects/investigations and what site we should work on. Within the DERP-FUDS program, the MAP is used as a tool to provide a team of personnel from USACE, EPA and Missouri a resource to quickly and effectively evaluate the status of the DERP-FUDS program at Missouri FUDS properties. This MAP is developed for the 89 properties located in the State of Missouri. As directed by the current MAP guidance, the Missouri MAP summarizes the current status of environmental restoration programs at each of these properties. Past project costs combined with estimated future project costs also are compiled and summarized to provide a reference to evaluate state-wide site specific expenditures for the DERP-FUDS program. The MAP provides concise site summaries for each site and is formatted to include information from the existing DERP-FUDSMIS, a USACE system. The MAP describes the DERP-FUDS program, and describes each agency s roles and responsibilities with respect to the program. Nebraska: The MAP has site descriptions, historical information and site maps for the various FUDS throughout the State. It has separate sections for active and inactive FUDS (including narrative descriptions of Nebraka Department of Environmental Quality s (NDEQ s) involvement with the Page 10 of 34

12 site, USACE site assessment activities, and EPA involvement). The MAP contains recent Two-Year Joint Execution Plans (JEPs) (JEP forms; and recent Performance Reports can be added behind that tab for easy access), a list of Superfund site investigations that have been accomplished by the State and by Region 7 EPA, a list of FUDS-eligible sites (known as Attachment A to the DSMOA/CA, and several USACE-generated FUDSMIS status reports. New Hampshire: New Mexico: New York: North Carolina: Ohio: To identify all the FUDS in the State, and to have USACE provide documentation for all FUDS for which they say are NOFA where New Hampshire has not yet agreed to a NOFA (New Hampshire at infancy of this step). The State has found it has not served its original purpose which was to prioritize execution of FUDS projects. The New Mexico MAP does include a list of projects and their priority. However, in lieu of following that prioritization scheme the USACE is executing projects based on their own priorities, which is implementation of the MMRP Preliminary Assessments and Site Investigations (PA/SIs). New Mexico also indicated that prior to the MAP they had already established a list of priority projects with the USACE, so the MAP provided little added value to the process. The State noted that if they believe there is a FUDS project that needs a time critical action then they would push the USACE to implement action and believe USACE would agree to do so. The purpose of the MAP is to identify contacts/funding, as well as prioritization. The MAP outlines the universe of cases and includes fact sheets and location maps, which help prioritize this universe of cases. Our MAP has a purpose instead of a scope. It is to list all FUDS in the State along with a project category and summary of current project status and phase. The MAP also allows us to assist in site prioritization, involves the State in property cleanup planning and decision making, and to help develop a coordinated long range plan (subject to funding) and to develop a forum to coordinate all activities. When Ohio entered into the MAP, there was supposed to be a companion document [a Memorandum of Agreement (MOA)] that outlined the working relationships and responsibilities of both agencies. The MAP was supposed to be an annual update of the priorities, points of contact, planned work, and completed work in the Ohio FUDS program. However, though we successfully negotiated the MOA, the USACE never signed the document, and now has stated that they cannot enter into an MOA because it would set a precedent with other States. Page 11 of 34

13 Pennsylvania: NOTE: CMSA is Pennsylvania s equivalent of a MAP. This CMSA sets forth a comprehensive process which includes a framework to collectively and creatively address the assessment and appropriate remediation of certain sites on the Inventory of Sites List. Specific objectives of the agreement are to: (a) Protect human health and the environment; (b) Use public participation and sound science in the decision-making process to accomplish outreach and risk reduction; (c) Ensure prompt compliance with applicable remediation requirements; (d) Return sites to productive non-military uses, as appropriate, to the benefit of the communities in which they are located, (e) Prioritize and effectively manage the Military Components and Pennsylvania s resources by implementing a comprehensive environmental site assessment and remediation program for a certain Inventory of Sites in Pennsylvania; (f) Minimize the Military Components liability through the Resolution of Sites within Pennsylvania by the year Rhode Island: South Carolina: South Dakota: Texas: Rhode Island views the main purpose of the MAP is to set priorities for the investigation and, if necessary, the remediation of FUDS. A secondary consideration would be to better define the working relationship between our two agencies, though this has not really been an issue. Evaluate and prioritize all FUDS properties within South Carolina, review, comment, and concur with removal/remedial work plans, and upfront involvement on all aspects of the FUDS program to insure that South Carolina interests are accounted for and USACE goals and milestones are met. The MAP identifies all FUDS in the State, contacts, action plans, maps, funding needs, and schedules. Overall the Texas MAP was comprehensive in scope and goes far beyond providing a list of projects and an agreed upon priority for those projects. The Texas MAP team agreed on the following goal statement: To promote closure of FUDS properties through effective communications and partnership among all stakeholders. The overarching objective of the Texas MAP is to establish streamlined processes for managing and executing key elements of the FUDS program. Additional objectives include: to accelerate project execution and property closeout through Page 12 of 34

14 upfront regulatory involvement, integrating regulatory processes (standardization of work plans and approaches), etc.; defining agency roles and responsibilities; project prioritization, promoting redevelopment opportunities; establishing one database for FUDS project status reports; and updating the MAP annually. Virginia: Washington: FUDS and MAP history; DERP-FUDS objectives and program summary; Consideration for new/additional properties and categorical exclusions for ineligible properties; Property/project No DOD Action Indicated (NDAI) agreement; Virginia priority sites; Community relations. Washington s MAP was modeled after Alaska s. The goals include: 1. Establish a team of personnel from the USACE, Washington Dept of Ecology, and EPA Region 10 to coordinate FUDS restoration activities. 2. Establish a framework to coordinate priorities for the future remediation activities among the agencies. 3. Present a list of FUDS properties and project categories. 4. Develop a coordinated long-range plan for environmental remediation at FUDS properties. 5. Provide a list of FUDS properties and project categories. 6. Develop a coordinated long-range plan for environmental remediation at FUDS properties. 7. Provide a summary of the DERP-FUDS program within Washington that may be made available to all stakeholders. 8. Summarize and forecast future activities and associated costs. 9. Describe roles and responsibilities of each agency with respect to the FUDS program. Wyoming: The MAP has tables showing the status of each site. For example, NDAI, or eligible or ineligible for project and cost to complete. Action plans summarizing the work done at the sites, and the work to be done are also included. Page 13 of 34

15 3. Has the MAP been effective in improving the following (check all that apply): State Communication Coordination Prioritization Funding Alaska Yes Yes Yes No California Yes Yes/No Yes/No No Colorado Yes Yes Not significantly yet Not significantly yet Indiana No No No No Illinois No No No No Kansas Yes Yes Yes Yes Massachusetts Yes Yes Yes No Michigan Yes Yes Yes Yes Missouri Yes Yes Yes Yes Nebraska No No Yes No New Mexico No No No No New York Yes Yes Yes Yes North Carolina Yes Yes Yes No Response Ohio No No No No South Carolina Yes Yes Yes Other South Dakota No Response No Response No Response No Response Texas No Somewhat No No Virginia No No No No Washington Yes Yes Yes No Wyoming No No Somewhat Somewhat Additional Comments and Issues: Alaska: California: MAP has not affected funding other than through changing priorities amongst projects. The MMRP was initiated out of Army Headquarters. This MMRP push has removed some FUDS sites from the NDAI status by the local USACE district offices. There were several questions the local USACE could not answer so more site specific work was needed. Communication is improving. We did receive the anticipated work plan for Fiscal Years 08/09 and 09/10, which had not occurred up front for several years. The USACE Grants Officer has not been as proactive and several sites continue to remain on our Attachment A, which the USACE will not work on this grant cycle. Page 14 of 34

16 We have had some additional coordination meeting. The dispute resolution process is allusive. It is still unclear how the State and/or EPA can affect a change to a work plan in a timely manner. Prioritization is currently up for discussion. No new funding is anticipated. Colorado: Connecticut: Indiana: Illinois: Massachusetts: Michigan: Nebraska: Ohio: FUDS MAP is a good baseline for discussion and a starting point, but has not resulted in higher funding or prioritization. No funding for FUDS. The MAP is vague and general. In addition, after the MAP was finalized, updating it was not a priority for the USACE. It has never been updated or revised. We would like to do site visits to several FUDS, but that is not a priority for the USACE. What is in the MAP reflects the same information that is discussed during our semi-annual program meetings with the USACE. The MAP really is no longer necessary because of these meetings. The FUDS Program meetings (held every 6 months) cover changes in work assignments, prioritization of sites, funding, communication and coordination issues, and other issues (such as the Government Owned/Contractor operated potentially responsible party (PRP), property transfer liability issues). We also discuss NDAI determinations made by the USACE and the status of State concurrence, and what sites we feel will need PAs. We also discuss State specific program issues (e.g. risk screening eliminating sites during the SI phase, the MMRP) and site specific updates and issues. Despite entering into the MAP, which included prioritization, projects are still underfunded. Although funding of FUDS is nebulous, the MAP has played a role in helping determine funding needs/issues. It also has helped focus the FUDS program, helped better understand the DSMOA program and scope of issues. We feel it is a valuable educational tool. So far, the MAP has been in the process of development. We have not yet started to use it routinely as a tool that is was geared to be. We hope to start using it more in the coming year after the next round of revisions. Our MAP is outdated, our communication and coordination is bad, and we have no idea of the planned work in Ohio for the next year. The USACE Page 15 of 34

17 also has stated at meetings with Ohio EPA that, as lead agency, they can proceed with projects without addressing Ohio EPA s concerns. Pennsylvania: Cleanups that would not have happened or would not have happened with the limited funding available/low priority by the USACE have been completed due to the CMSA. Good communication, increased coordination, voluntary compliance, cooperation between State and federal agencies and creative funding arrangements has pushed lower priority or unfunded sites not normally scheduled for cleanup before 2010 into a removal or remedial action much quicker. In many cases, these accelerated cleanups were based on State priorities, not USACE. Communication has been the major advantage of Pennsylvania s CMSA. All services have noted increased communication with associated DEP Central and Regional offices necessary to move forward with site assessment and remediation. There is a central point of contact for DEP and DOD, as well as a point of contact for each DEP regional office and DOD military components. Concerning Coordination, this Agreement sets forth incentives and uses clear, flexible cleanup standards, site assessment procedures, and site specific, risk-based approaches of Act 2 (voluntary cleanup program). Other factors are also considered to provide a faster track approach to better protect the environment, and return properties to productive use. A Master Plan, based on the site prioritization factors is utilized to achieve the goals and objectives of the Agreement. The components of the Master Plan are the Master Schedule and the Site Narratives. The Master Plan lists each of the Scheduled Sites and indicates approximately when the necessary investigation and cleanup work will take place. Parties agree to use the DOD Relative Risk Site Evaluation ( RRSE ) system as the initial step for setting priorities for cleanup action. While the Parties agree that the comparison of human health and environmental risk and risk reduction potential is appropriate in setting priorities, they are not the only factors. Risk should be viewed in the context of other social values, environmental goals, and economic benefits. The Parties will consider other factors in setting priorities. State activities in the CMSA are funded through the State DSMOA Program. However, some FUDS activities have been wholly or partially funded as well through the State s Hazardous Sites Cleanup Program Page 16 of 34

18 South Carolina: South Dakota: Texas: While we have obtained some limited funding to research and prioritize FUDS sites within the State, the overall FUDS budget does not allow for much progress. It s nice having one document with summary information in it. I have used the MAP to review internal coordination on review of INPRs. It is also useful for explaining our work relationship with EPA Region 6. Regarding prioritization, nothing has been done that was not being done prior to having a map. The State and USACE also disagree on cleanup standards and requirements including fulfilling State institutional controls requirements. It should be noted that due to State workload issues, the Texas MAP has long been overdue for updating. Nevertheless, fundamental aspects of the MAP such as respective roles and responsibilities would/should not be substantively affected by this update. Since the USACE now considers the FUDS Policy (ER ) to have precedence over State MAPs, it would appear MAPs may no longer serve as the key management tool for effective program management. With respect to the FUDS Program Policy, it should be noted that in several significant instances the USACE responses conflict with the requirements of ER Virginia: Washington: For yes for all categories, but since 2005 the MAP has not been a directing document for our program. It has not been updated nor have meetings regarding the MAP occurred during the last couple of years. Since 2007 it has not served as a guide or roadmap. Communication improved with the Seattle District for the last 5 to 6 years. However, the USACE recently moved its office to Kansas City, and coordination and communication have become a challenge. Funding is becoming a problem. While prioritization has worked reasonably well, with a limited budget, prioritization is starting to become an issue. Wyoming: The MAP is useful for outside entities such as legislators. Page 17 of 34

19 4. How would you rate your working relationship with your USACE rep/district? Alaska District: Alaska: Good. Baltimore District: Delaware: DC: Maryland: Pennsylvania: Virginia: Generally good. Very poor Limit contact with the person in charge of FUDS for the USACE Baltimore District. Out-reach efforts need to be improved. Spotty at best. Excellent in most cases. Occasionally, there have been disputes that have been effectively resolved under the terms of the CMSA. We have good communications and working relationship with the Baltimore District and Jack Butler, our representative. He has been very responsive. However, see response below to question 5. Buffalo District: Ohio: Bad. The USACE do not follow through on commitments, and my staff does not know what is going on. Documents come in and they want our reviews completed within 12 days of receipt. On the MMRP sites, we were told that the work was performance based, so if we had a problem with the scope, there was nothing they could do but address it during future investigations. We also had the PRP/liability issue stop work at several critical projects in Ohio. Fort Worth District: Arkansas: No response (see response to Question 5). Louisiana: Texas: Overall the State has a good working relationship with the USACE, although there have been instances where projects have been unexpectedly added, and the State has had to scramble to add the sites to the attachment A, and develop JEPs and funding estimates for State oversight. Within the past 6 months the working relationship between Texas Commission on Environmental Quality (TCEQ) Project Mangers (PMs) and their respective USACE PM for hazardous, toxic and radioactive waste (HTRW) projects has significantly deteriorated due to both technical and regulatory disagreements. TCEQ has had continuing disagreement concerning technical requirements at several sites and will likely pursue dispute resolution to resolve these issues. The Texas MAP is Page 18 of 34

20 Kansas City District: of no use in resolving either technical or regulatory issues. For instance, in response to a TCEQ comment that referenced Section of the Texas MAP which states that the [USACE] will satisfy all applicable TCEQ regulations, policies and guidelines for sites which have had a release the USACE responded as follows: The current Defense Environmental Restoration Program Guidance Document (ER , dated 10 May 2004) takes precedence in FUDS Program Management and supersedes State Action Management Plans signed prior to the date of this guidance. It should be noted that TCEQ is currently conducting an in-house review of its regulatory authority at FUDS in response to the USACE assertion that under CERCLA the State does not have jurisdiction to order compliance with the administrative or procedural requirements of the Risk Reduction Standard (RRS) or Texas Risk Reduction Program (TRRP). Idaho: Kansas: Missouri: Nebraska: Washington: Working together better than in previous years but some of that may be from the USACE MMRP work, which is directed by congressional action where the USACE is coordinating reasonably well with Idaho. Our working relationship with district staff is very positive and professional. Lines of communication are always open, and the district is responsive to the State s concerns and priorities. Very Good. We have a good working relationship with the various USACE District programs and project managers, with the exception of a couple sites and/or USACE project managers. Our working relationship was really good when the USACE office was in Seattle. Now that they have moved to Kansas City, it is much more difficult to get meetings scheduled and coordination has become more challenging. Los Angeles District: California: USACE is not a dynamic organization able to timely address changes or agencies concerns regarding health and safety at FUDS properties as issues arise which makes for a contentious relationship. Both the State and USACE are trying to make the best of a difficult situation. Case in point: Several projects have stopped due to USACE reluctance to address releases by the DOD where USACE believes others may have contributed, no matter how little their contamination contribution might have been. For the MMRP sites the USACE is trying to narrow the search area based on file searches and no field or limited field information too early in the SI process. Additionally, the chemical sampling for munitions Page 19 of 34

21 and explosives of concern (MEC) constituents is extremely limited and tries to accomplish a NOFA determination without understanding the heavy areas of ordnance use. Basically the USACE is trying to do too much with limited data. New Mexico: Very good. Our relationship was very good prior to entering into the FUDS MAP. Louisville District: Illinois: Indiana: Michigan: Ohio: Good. We feel we have an excellent FUDS Program Manager for Illinois who is committed to the program. We have concerns over what may happen when he retires. Other USACE staff may not be as committed to making the FUDS program work. Our working relationship with the USACE staff on projects is good. They are responsive to our comments and want to address State concerns. Our interaction with the FUDS Program Manager is non-existent. He does not seem to know the status of the work. We also had to teach him on how to use the DSMOA JEP portal, which made more work for us. Excellent. Bad. The USACE do not follow through on commitments, and my staff does not know what is going on. Documents come in and they want our reviews completed within 12 days of receipt. On the MMRP sites, we were told that the work was performance based, so if we had a problem with the scope, there was nothing they could do but address it during future investigations. We also had the PRP/liability issue stop work at several critical projects in Ohio. New England District: Connecticut: Maine: Massachusetts: New Hampshire: New Jersey: New York: Rhode Island: Vermont: N/A. Not working on any FUDS at this time. Good, but don t always see eye to eye on project goals. Good. Adequate. We could use more frequent communication. Generally, New Jersey has a very positive working relationship with the USACE. New York has a very good working relationship with the USACE. In general, a productive relationship. Very good. Page 20 of 34

22 Omaha District: Colorado: Iowa: Minnesota: Montana: North Dakota: Nebraska: South Dakota: Wisconsin: Wyoming: Excellent. Poor. In general, the USACE has shown an unwillingness to work on projects in Iowa, citing lack of resources as the reason. Although all sites are on 12-year outlook schedules for completion of major milestones, each year the USACE pushes these schedules back. Okay. It has taken a while to get the current projects to where they are today. It also takes a long time to hear back. We feel that our FUDS projects take way too long to accomplish anything, which may be because of funding issues. No Response. Good on other issues. The State has not had major issues with them on FUDS. We have a good working relationship with the various USACE District programs and project managers, with the exception of couple sites and/or USACE project managers. Very good. Generally pretty good. Our FUDS Omaha Point of Contact is pretty good reasonable and responsive to our concerns. Contentious. Sacramento District: California: USACE is not a dynamic organization able to timely address changes or agencies concerns regarding health and safety at FUDS properties as issues arise which makes for a contentious relationship. Both the State and USACE are trying to make the best of a difficult situation. Case in point: Several projects have stopped due to USACE reluctance to address releases by the DOD where USACE believes others may have contributed, no matter how little their contamination contribution might have been. For the MMRP site,s the USACE is trying to narrow the search area based on file searches and no field or limited field information too early in the SI process. Additionally, the chemical sampling for MEC constituents is extremely limited and tries to accomplish a NOFA determination without understanding the heavy areas of ordnance use. Basically the USACE is trying to do too much with limited data. Utah: The working relationship has generally been pretty good. Page 21 of 34

23 Savannah District: North Carolina: Very good, in part due to our USACE point of contact. South Carolina: Tennessee: A change in USACE reps over the past year has made a tremendous improvement in communication, partnership, and accountability. We now have a contact that is responsive to our concerns and is willing to accept input on future prioritization of sites. Most of the sites are doing okay. Some sites, however, are not receiving adequate funding. Tulsa District: Oklahoma: Texas: The State believes that based on sufficient communication (annual meetings), a good work relationship, and JEPs (which provide sufficient details regarding projects), that a MAP with the USACE is not necessary. Within the past 6 months the working relationship between TCEQ PMs and their respective USACE PM for hazardous, toxic and radioactive waste (HTRW) projects has significantly deteriorated due to both technical and regulatory disagreements. TCEQ has had continuing disagreement concerning technical requirements at several sites and will likely pursue dispute resolution to resolve these issues. The Texas MAP is of no use in resolving either technical or regulatory issues. For instance, in response to a TCEQ comment that referenced Section of the Texas MAP which states that the [USACE] will satisfy all applicable TCEQ regulations, policies and guidelines for sites which have had a release the USACE responded as follows: The current Defense Environmental Restoration Program Guidance Document (ER , dated 10 May 2004) takes precedence in FUDS Program Management and supersedes State Action Management Plans signed prior to the date of this guidance. It should be noted that TCEQ is currently conducting an in-house review of its regulatory authority at FUDS in response to the USACE assertion that under CERCLA the State does not have jurisdiction to order compliance with the administrative or procedural requirements of the RRS or TRRP. Page 22 of 34

24 5. What other issues are working well/aren t working well, in the FUDS universe (please explain) Alaska District: Alaska: Semi-annual review and updates to the MAP have been challenging due to turnover within the USACE and time/workload issues. Using the joint prioritization process has been successful in changing which sites are currently being addressed. Baltimore District: Delaware: DC: Maryland: The priority of completing MMRP SI s seems to outweigh HTRW issues. EPA Region III sponsors an annual Region III/States/FUDS meeting. There was agreement within the group that coordination efforts would be shared, not all parties lived up to their commitments. Poor coordination resulted in limited State participation. The USACE continues to focus on meeting goals based on available funding rather than addressing risk or buying out sites. Six small projects are better than getting one site done right and closed out. Their time frames are often unrealistic and their coordination regarding sampling events is generally poor. The USACE believes that they are the lead agent for FUDS, but consistently does not act like a lead agent. They are reluctant to sample off site. PRP sites are quickly dropped from their active sites list. At PRP sites, the USACE refers any claims to the Department of Justice s (DOJ s) settlement fund rather than acting as EPA would: to assemble a PRP group to complete needed work at the site. The USACE also has a tendency to stretch the interpretation of beneficial use to avoid responsibility. While the where is, as is transfer documentation issue has not been raised in Maryland, it would certainly seem to be counter to concept of strict, joint and several liability under CERCLA. Pennsylvania: WELL: The CMSA has been effective in accelerating resolution of sites not scheduled or funded by the military components. Many of these sites, once identified as priorities by the Pennsylvania, have been remediated and resolved by the military components much sooner than they normally would have been. NOT SO WELL: FUDS funding has, and will continue to be an issue in Region 3 States. Also, the USACE Reorganization has added more responsibilities and oversight to the Baltimore District which was already Page 23 of 34

25 overworked before. A few project managers have complained their workload has increased as a result. FRUSTRATING THINGS ABOUT THE FUDS PROGRAM: 2 The beneficial use issue has caused a lot of concern with cleanups. If the USACE decides that something has been beneficially reused by a party other than DOD, they no longer accept responsibility for cleanup actions. One example was a pole-mounted transformer at which they heard buzzing during a site visit. The USACE decided the transformer was beneficially reused and was ineligible for cleanup funding. PRP Sites A PRP decision effectively derails the entire cleanup process at the site. The State is expected to pursue the responsible parties rather than the USACE for cleanup responsibility. The State can t issue an order to the USACE because it will violate DSMOA and the current land owner in many cases wasn t the party responsible for the contamination, so it falls into a crack in the system. The USACE will cash out of their share with the PRP(s) but will not take any remedial actions. Fluid funding funds availability within the USACE District seems to shift between projects, usually without any advanced notice. If you are given notice, it s merely notification that it WILL occur. While remedial action at any FUDS is always welcome, the State would like some input in the process. While the actions may complete a USACE project, it may not be a very high priority cleanup in the State s perspective. Projects without notice. Occasionally, through shifting of available funds within the USACE Districts, funding will become available to complete a project within a definitive period usually by the end of the fiscal year. This causes new, unplanned work not scheduled on the DSMOA and possibly even a new site altogether. This requires a new Attachment A, a JEP and DSMOA funding. Additional State resources may be required but may not be readily available. Virginia: While we have a good working relationship with the district office and staff, USACE efforts, resources, and certain approaches are inadequate and disappointing. This includes the following: 2 These comments apply to the FUDS Program in general, not to the USACE, Baltimore District. Page 24 of 34

26 USACE performed/contracted PAs and SIs have been inadequate and not of the requisite quality. Water ranges are not being addressed by the USACE despite their importance and obvious Army and/or DOD contributions to contamination, unexploded ordnance (UXO), and other concerns. USACE too quickly tries to absolve itself of responsibility for sites based on inadequate assessment and investigation, and also by attributing responsibility to PRPs even when Army and/or DOD activities are most likely sources of contamination and risk (e.g., disqualifying a site used by the Army for many years because the military did not have formal title to the real estate; or disqualifying a facility used for many years for defense/military purposes but was used for a short period by a non-defense federal agency, thus labeled as having undergone non-defense beneficial use ). Underfunding/under-resourcing; at current levels of effort, FUDS in our State will remain unaddressed or under-addressed, with consequent environmental and health risks and economic and natural resource losses for decades or generations. Buffalo District: Ohio: One issue going well is some of the recent work concerning the FUDS inventory. One of the two Army Corps Program Managers has been working with the State to obtain concurrence on NDAI determinations on some properties to better define the amount of work in Ohio. The issues not working well are the PRP/liability issue, problems with MMRP investigations and scopes of work, the lack of responsiveness for the USACE to respond to issues in a timely manner, their attitude about working with States to address our regulatory concerns. Fort Worth District: Arkansas: Louisiana: Arkansas does not have a MAP and is not involved with the USACE with any FUDS projects since Arkansas does not have a DSMOA and the USACE is not willing to provide oversight reimbursement through another mechanism. As a result, the USACE executes FUDS projects with no State oversight. Louisiana does not have a MAP although they are interested in having one. The local USACE district has postponed development of a MAP for Louisiana without much explanation for the delay. The State believes a Page 25 of 34

27 MAP will be useful in generating a complete inventory of State FUDS sites/projects, including agreeing upon future project priorities. Texas: Oklahoma: One area of recent improvement with the USACE concerns State involvement with the MMRP PA/SI projects. TCEQ had a number of issues with the USACE concerning these projects including: failure of the USACE to respond to TCEQ technical comments, inadequate regulatory review times, lack of agreement on regulatory screening criteria and other decision making criteria. TCEQ held a conference call with the USACE and EPA Region 6 representatives to resolve these issues and generally found agreement on how to resolve/minimize these issues. Note that this was achieved without the need for, or use of, the Texas MAP. However, the MAP would be a good document to memorialize what was agreed to. Overall work relationship is good. No additional comments. Kansas City District: Idaho: Kansas: Missouri: Nebraska: The INPR process Idaho has not agreed on many of those decisions but the USACE presents them as if Idaho was involved. Idaho would like to go back and revise some of the INPRs but the DSMOA process makes it very difficult to coordinate with the USACE on which sites to reopen. Coordination with the USACE on MMRP sites is going well. Overall, the program is working well. An issue of concern is limitations on utilizing DSMOA funding at sites where remedial activities are being transferred from USACE to another party (i.e., BRAC sites, PRP sites). No Response. - Progress is being made with the FUDS MMRP site investigations. - Progress has resumed at two new FUDS in The latest efforts to develop JEPs and prepare other funding documents, on-line, using the DSMOA Community Portal demonstrated the ability to save NDEQ staff time and effort. However, there were considerable problems in having the components complete their portions of the JEP correctly and in a timely fashion. There were other minor technical glitches in the system, which we expect will be worked out by the USACE by the next time around. - The NDEQ and Kansas City District have disagreements regarding the applicability of portions of the State ground water regulations as Applicable or Relevant and Appropriate Requirement (ARARs). Dispute resolution is under progress. Page 26 of 34